Court Weighs Gay Marriage

A serious discussion in the Supreme Court, during hearings over California's ban on gay marriage, drew laughter when questions turned to procreation. Justices honed in on issues related to the impact of same-sex marriage on children. WSJ's Jason Bellini reports. Image: AP

WASHINGTON—Supreme Court justices appeared divided Tuesday during historic arguments over the fate of gay marriage in California, at some moments almost regretful they took the case and at others splitting neatly into well-worn ideological camps.

Peter Landers explains arguments on both sides of the Defense of Marriage Act that will be heard by The Supreme Court on Tuesday. Photo: Getty Images.

Justice Anthony Kennedy, seen holding a key vote, wrote both of the court's major gay-rights decisions, most recently in 2003. On Tuesday, however, he made clear that the case of Proposition 8, a 2008 California voter initiative that rescinded the marriage rights of same-sex couples in the state, had left him conflicted.

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People line up to enter the Supreme Court on March 25.
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Proposition 8 co-counselor Austin Nimocks discusses what the gay marriage case in the high court hinges on, and what he thinks are the consequences of the ban getting struck down. Photo: Getty Images.

"You're really asking…for us to go into uncharted waters," he told Theodore Olson, the lawyer challenging Proposition 8. "And you can play with that metaphor. There's a wonderful destination or there's a cliff."

Tuesday's arguments came in the first of two cases in which the high court for the first time is directly tackling gay marriage, now legal in nine states and the District of Columbia. The court on Wednesday will hear a challenge to the federal Defense of Marriage Act, a 1996 law denying federal recognition and benefits, such as exemption from the estate tax, to same-sex spouses.

Former Solicitor General Walter Dellinger tells WSJ's Jerry Seib this week's Supreme Court arguments showed that the argument that gay marriage ought to be blocked on moral grounds has lost some of its force, making the anti-marriage argument more difficult.

Former Solicitor General Walter Dellinger tells WSJ's Jerry Seib that arguments in the Supreme Court suggest justices may be seeking a narrow ruling that clears the paths for state action on gay marriage, rather than a sweeping ruling to settle the issue.

Lower federal courts have invalidated that law, saying the federal government has accepted state-authorized marriages in other instances. Decisions in both cases are expected before July.

In the California case, lower federal courts already have ruled Proposition 8 unconstitutional. The justices could reinstate it or strike it down. They have a range of options in the latter scenario, including issuing a procedural ruling that would apply only to California or expanding same-sex marriage rights beyond California to some or even all of the 50 states.

Some justices appeared to search for a way to avoid placing the Supreme Court's imprimatur on a decision, one way or the other. Chief Justice John Roberts asked repeatedly whether the case should have reached the high court at all.

The state of California declined to defend Proposition 8 after its governor and attorney general concluded the measure was unconstitutional. Should the court adopt that position, it likely would leave in place a federal district court decision invalidating Proposition 8 but creating no binding precedent on gay marriage itself.

Although lower courts held that the official citizen-sponsors of the measure had legal standing to defend Proposition 8, Justice Stephen Breyer suggested that federal precedents might not allow private individuals to represent a state government's position in court.

Transcript: Day One

Explore the transcript of the gay marriage arguments at the Supreme Court.

During the arguments, justices zeroed in on several of the overarching issues that have vexed the nation for more than two decades, including the purpose of marriage and the meaning of the Constitution's guarantee of equal protection as applied to gays and lesbians.

Behind their deliberations was the recognition of fast-changing public opinion, with polls showing a majority of Americans now favor gay marriage. The court's landmark 1967 ruling barring states from restricting interracial marriage came up several times, as the justices wrestled with how to make a decision that would stand up to history's judgment.

Defending Proposition 8, lawyer Charles Cooper said marriage was designed to advance a state's interest in "responsible procreation." He said marriage could be threatened if same-sex couples with no ability to bear children could be married.

Justice Elena Kagan asked if the same rationale would allow a state to deny marriage to people over 55. "If both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage," she said.

Maybe so, replied Mr. Cooper. But since men can remain fertile throughout life, marriage served state interests by imposing "obligations of fidelity and monogamy" to deter husbands from extramarital relations with younger women that could produce unintended offspring, he said. Allowing same-sex couples to cloak themselves in the terminology of marriage could have harmful "real-world consequences," he said.

Waiting for Court to Weigh Gay Marriage

See photos from the scene outside the Supreme Court

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Justice Kennedy showed sympathy for the argument that it was too early to know whether gay marriage could be harmful. No state authorized same-sex marriage until Massachusetts in 2004. "We have five years of information to weigh against 2,000 years of history or more," he said. At the same time, he continued, denying marital status to gay couples potentially harmed at least one group: their children, of whom there are nearly 40,000 in California. "They want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?" Justice Kennedy said.

Several conservative justices found the issue more clear-cut. "When did it become unconstitutional to exclude homosexual couples from marriage?" conservative Justice Antonin Scalia demanded of Mr. Olson in one of several heated exchanges. In "1791? 1868, when the 14th Amendment was adopted?"

"There's no specific date in time. This is an evolutionary cycle," Mr. Olson replied. But "marriage is a fundamental right," he said.

While justices' questions often indicate how they plan to vote, they don't necessarily foretell the final decision.

The court's four liberals, meanwhile, aggressively questioned Mr. Cooper. Justice Sonia Sotomayor pushed him to explain what other forms of discrimination against homosexuals he found acceptable. "Outside of the marriage context, can you think of any other…reason for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?" she asked. "Your Honor, I cannot," Mr. Cooper said.

Chief Justice Roberts, a conservative, flipped that very point around later in the argument. Under California law, gay couples can register domestic partnerships that provide the same rights and responsibilities as marriage.

"So it's just about the label in this case," the chief justice told Mr. Olson. "What the supporters of Proposition 8 are saying here [is that] all you're interested in is the label, and you insist on changing the definition of the label."

Mr. Olson replied by raising Loving v. Virginia, the court's 1967 decision invalidating a ban on interracial marriage. By the chief justice's logic, the court could have told Mildred and Richard Loving that "'you can't get married, but you can have an interracial union,' " Mr. Olson said. "Everyone would know that that was wrong."

Solicitor General Donald Verrilli, representing the Obama administration's view that Proposition 8 should be struck down, argued that because California granted gay couples all the rights of marriage, denying them the word itself unconstitutionally stigmatized them. But some justices said that led to an odd result in which states providing no recognition to gay couples would have greater justification in denying them marriage rights.

"You're saying it's got to happen right now in California," Chief Justice Roberts said, "but you can wait in states where they have fewer legal rights."

No justice seemed ready to embrace Mr. Olson's argument that same-sex marriage must be recognized nationwide. Justice Ruth Bader Ginsburg said even the Loving decision was the culmination of several cases involving interracial relationships.

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